Monyenye v National Police Service Commission & 3 others (Judicial Review E001 of 2023) [2023] KEELRC 3245 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether leave to apply for certiorari and prohibition should operate as stay of the interdiction
No. The interdiction letter dated 17th November 2023 is a final decision; staying it at this stage would grant the final relief sought in the substantive motion, and the direction to restore full salary would improperly compel a public body to act.
The court examined the three grounds argued - irreparable harm, whether the decision was final, and averting greater injustice. It found no irreparable harm since salary continues to accrue and is recoverable. Relying on the Akuku decision and the authorities cited therein, it held a stay at leave stage would prejudge the substantive judicial review. It also relied on Taib Ali Taib that a stay restrains rather than compels action. Accordingly leave was to operate without stay, with directions to file the substantive motion.
Whether the Applicant demonstrated irreparable harm
No - the Applicant remains on salary (even if at half) and can recover the full salary if the interdiction is set aside; assertions from the Bar about reduced salary had no evidentiary support.
Counsel asserted from the Bar that salary had been reduced to half and that the Applicant had been directed to vacate police quarters and report twice weekly to the OCS. The court noted evidence from the Bar is inadmissible and there was no evidence before court. The payslip annexed (DM3) showed he was still receiving salary, negating irreparable harm.
Legal principles established
#- Where the decision sought to be stayed is final and complete, granting a stay at the leave stage of judicial review would be tantamount to granting the substantive orders sought and is inappropriate
- A stay is appropriate only to restrain a public body from acting, not to compel it to act
Court orders
#- 1.Leave granted on 27th November 2023 shall not operate as stay of the interdiction decision
- 2.The Exparte Applicant to file the Notice of Motion (JR suit) within 14 days and serve
- 3.The Respondents to have 14 days upon service to file response; the Exparte Applicant at liberty to reply
- 4.Pretrial directions on 24th January 2024
- 5.Notice to issue
- 6.No order as to costs
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court under the Fair Administrative Action Act and Order 53 of the Civil Procedure Rules (leave to institute judicial review for Certiorari and Prohibition)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Monyenye v National Police Service Commission & 3 others (Judicial Review E001 of 2023) [2023] KEELRC 3245 (KLR)", Case Analysis (2023). Judicial Review (Chamber Summons) Application dated 27th November 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3245/eng@2023-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.